ACTA: Updated Analysis of the Final Version

Following the release of the final, legally-verified version of ACTA (dated December 3rd), we have updated our analysis of the most worrying provisions of this dangerous anti-counterfeiting agreement.

ACTA AS A BULLYING WEAPON FOR THE ENTERTAINMENT INDUSTRIES

By putting legal and monetary pressure on Internet service providers (in a most subtler way than in previous versions of the text), ACTA will give the music and movie industries a weapon to force them to police their networks and users themselves. Such a private police and justice of the Net is incompatible with democratic imperatives and represent a real threat for fundamental freedoms.

In its article 27.31 the ACTA agreement calls for "cooperation" between rights-holders and the Internet service providers. The very same mechanisms are called by the European Commission as "extra-judicial measures" and "alternative to courts". It means that police (surveillance and collection of evidences) and justice missions (penalties) could be handed out to private actors, bypassing judicial authority and the right to a fair trial to block and take down allegedly infringing content. This is further supported by article 27.1's reference to "expeditious remedies to prevent infringement and remedies which constitute a deterrent to further infringements".

In article 27.42, ACTA will allow rights-holders to obtain private data regarding the users of Internet service providers, without a decision of a judge. This is a dangerous breach to privacy. The article is non-binding (using the "may" verb), but this could be changed further, by way of amendment (see below). This would generalize a much criticized procedure included in the 2004 IPR enforcement directive.3.

Civil sanctions4 could also weight on technical intermediates and be used to pressure them to accept "cooperation". The “damages” section of the civil chapter5 validates the "lost-sale myth" whereby the industry claims enormous profit losses using biased methodologies. The text requires "pre-established" damages, as well as "additional damages," which means damages not based on any actual proof of harm and akin to a criminal sanction.

Article 23.46: Criminal sanctions for "aiding and abetting" infringement (it sounds just like IPRED27, which is not part of the EU acquis). These could also be used against Internet technical intermediaries and technology providers as a way to force them into accepting "cooperation" with rightsholders.

Article 27.28: This reference to the enforcement of “means of widespread distribution for infringing purposes” is very worrying. It could be interpreted as justifying the implementation of provisions indirectly criminalizing blogging platforms, P2P networks, free software, and other technologies that contribute to dissemination of culture and knowledge on the Internet.

ACTA BRINGS BROAD AND DANGEROUS CRIMINAL SANCTIONS

ACTA imposes new criminal sanctions, bypassing the EU and Member States' standard democratic process. The wording is so broad that many not for-profit actions could be criminalized.

Article 23.49: Criminal sanctions for "aiding and abetting" infringement. It is intolerable that criminal sanctions are included in a "trade agreement". Such measures should only be debated in democratic arenas. Moreover, the limit between "aiding" infringements and linking to or indexing information is blurry.

Article 23.110: ACTA provides that criminal sanctions must be applied for cases of infringement on a "commercial scale". This term is vague, open to interpretation, and just plainly wrong when it comes to determining the scope of proportionate enforcement. Widespread social practices, like not-for-profit filesharing betweens individuals, could be interpreted as "commercial scale". The only acceptable limitation of the scope of enforcement should be "commercial intent" or "for profit".

ACTA WILL ALLOW FOR A DURABLE BYPASS OF DEMOCRACY

An "ACTA committee" will be able to modify the agreement after it has been accepted. Such a parallel legislative process, accounting to a blank check to ACTA, is incompatible with democracy. This justifies that the whole ACTA be rejected.

Article 3611: This article creates the "ACTA committee", and grants it the competence to review amendments to ACTA (art 4212). This paves the way for a durable bypassing of democracy, even after ACTA is voted. No elected representative should tolerate this in a democracy as it opens the door for such processes to be generalized.
For a discussion on why the whole logic behind ACTA is flawed, see also our post titled "ACTA: An Outdated Agreement That Must Be Rejected".

1.Each Party shall endeavour to promote cooperative efforts within the business community to effectively address trademark and copyright or related rights infringement while preserving legitimate competition and, consistent with that Party’s law, preserving fundamental principles such as freedom of expression, fair process, and privacy.

2.A Party may provide, in accordance with its laws and regulations, its competent authorities with the authority to order an online service provider to disclose expeditiously to a right holder information sufficient to identify a subscriber whose account was allegedly used for infringement, where that right holder has filed a legally sufficient claim of trademark or copyright or related rights infringement, and where such information is being sought for the purpose of protecting or enforcing those rights. These procedures shall be implemented in a manner that avoids the creation of barriers to legitimate activity, including electronic commerce, and, consistent with that Party’s law, preserves fundamental principles such as freedom of expression, fair process, and privacy.

3. The directive created an obligation for Internet Service Providers to disclose personal information regarding their customers to recording industry executives during civil prosecution of persons suspected of sharing copyrighted works over the Internet. This has led to much controversies in Member States regarding the respect of people's privacy and, again, the proportionality of such measures in the case of non-commercial infringements. See, for instance, the case of Sweden http://www.thelocal.se/19556/20090520/

4.Article 8: Injunctions:
1. Each Party shall provide that, in civil judicial proceedings concerning the enforcement of intellectual property rights, its judicial authorities have the authority to issue an order against a party to desist from an infringement, and inter alia, an order to that party or, where appropriate, to a third party over whom the relevant judicial authority exercises jurisdiction, to prevent goods that involve the infringement of an intellectual property right from entering into the channels of commerce.
2. Notwithstanding the other provisions of this Section, a Party may limit the remedies available against use by governments, or by third parties authorized by a government, without the authorization of the right holder, to the payment of remuneration, provided that the Party complies with the provisions of Part II of the TRIPS Agreement specifically addressing such use. In other cases, the remedies under this Section shall apply or, where these remedies are inconsistent with a Party’s law, declaratory judgments and adequate compensation shall be available.

5.Article 9: In determining the
amount of damages for infringement of intellectual property rights, a Party’s judicial authorities shall have the authority to consider, inter alia, any legitimate measure of value the right holder submits, which may include lost profits, the value of the infringed goods or services measured by the market price, or the suggested retail price.

6.With respect to the offences specified in this Article for which a Party provides criminal procedures and penalties, that Party shall ensure that criminal liability for aiding and abetting is available under its law.

7. After the Directive on the civil enforcement of intellectual property rights was passed in 2004, another proposal (IPRED 2) was introduced in 2005 with the aim of harmonizing criminal sanctions among Member States. IPRED 2 was eventually dropped after much criticisms from Members of the European Parliament, civil society groups and even Member States who pointed out the EU's lack of legal competence in the field of criminal law: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:52005PC0276%2801%29:EN:NOT

8.Further to paragraph 1, each Party’s enforcement procedures shall apply to infringement of copyright or related rights over digital networks, which may include the unlawful use of means of widespread distribution for infringing purposes. These procedures shall be implemented in a manner that avoids the creation of barriers to
legitimate activity, including electronic commerce, and, consistent with that Party’s law, preserves fundamental principles such as freedom of expression, fair process, and privacy

9.With respect to the offences specified in this Article for which a Party provides criminal procedures and penalties, that Party shall ensure that criminal liability for aiding and abetting is available under its law.

10.Each Party shall provide for criminal procedures and penalties to be applied at least in cases of wilful trademark counterfeiting or copyright or related rights piracy on a commercial scale.9 For the purposes of this Section, acts carried out on a commercial scale include at least those carried out as commercial activities for direct or indirect economic or commercial advantage.

11.Article 36.2
The Committee shall:
(a)review the implementation and operation of this Agreement;
(b) consider matters concerning the development of this Agreement;
(c) consider any proposed amendments to this Agreement in accordance with
Article 42 (Amendments);
(d) decide, in accordance with paragraph 2 of Article 43 (Accession), upon the terms of accession to this Agreement of any Member of the WTO; and
(e) consider any other matter that may affect the implementation and
operation of this Agreement.

Article 36. 4: All decisions of the Committee shall be taken by consensus, except as the Committee may otherwise decide by consensus. The Committee shall be deemed to have acted by consensus on a matter submitted for its consideration, if no Party present at the meeting when the decision is taken formally objects to the proposed decision. English shall be the working language of the Committee and the documents supporting its work shall be in the English language.

12.1. A Party may propose amendments to this Agreement to the Committee. The Committee shall decide whether to present a proposed amendment to the Parties for acceptance, ratification, or approval.
2. Any amendment shall enter into force ninety days after the date that all the Parties have deposited their respective instruments of ratification, acceptance, or approval with the Depositary.